31 S.E.2d 494 | Ga. Ct. App. | 1944
1. Under the contract involved herein conveying the timber of a described size, and providing that the same should be cut and removed within a specified time, that which was cut within the prescribed time but not removed from the land within that time nevertheless was the property of the grantee, and it was wrongful for the grantor to convert it to his own use.
2. The grantee would acquire no title to any timber not actually cut and detached from the soil during the term of the contract.
1. The motion for new trial presents only one question for our decision. The court charged the jury that after February 12, 1942, the date the contract expired, the plaintiff would not have any right either to cut or remove any timber from the lands of the defendant; and that after that date all timber on the land, whether standing or cut into logs and left on the ground, would be the property of the defendant. One excerpt from the charge complained of is as follows: "I charge you that under the terms of that written contract . . Mr. Cochran would have to finish cutting and finish hauling away the logs that he claims belonged to him on or before midnight of February 12, 1942. In other words, he had a year to cut the timber and the same time in which to haul the timber away. He would have to cut it and haul it away before the 13th of February, 1942, in order to maintain his suit before you now." If the construction the court placed on the contract was correct, manifestly the verdict of the jury was right. If the court's construction of the contract was wrong, it follows that the charge complained of was error and a new trial should have been granted.
In Johnson v. Truitt,
Counsel for the defendant in error cite no case which holds contrary to the rulings in Truitt v. Johnson and Jones v.Graham, supra, but they do cite in their supplemental briefMorgan v. Perkins,
2. There was an issue as to whether all of the timber sued for was cut before the expiration of the twelve months provided in the contract. The plaintiff acquired no title to any timber not actually felled and detached from the realty during the term of the contract, and any recovery by him is limited to timber cut and left upon the ground when the contract expired. This issue can be determined upon another trial.
Judgment reversed. Sutton, P. J., and Felton, J., concur.